United States v. Nam Ngoc Nguyen

MEMORANDUM

Nam Ngoc Nguyen appeals from the district court’s judgment and challenges the 121-month sentence imposed following his guilty-plea conviction for two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). We dismiss.

Nguyen contends that the district court committed various procedural errors and imposed a substantively unreasonable sentence. The government argues that the appeal is barred by a valid appeal waiver. We review de novo whether Nguyen has waived his right to appeal. See United States v. Bibler, 495 F.3d 621, 623 (9th Cir .2007).

Nguyen first asserts that the appeal waiver does not apply because the district court varied downward from the advisory Guidelines range. Contrary to Nguyen’s contention, his sentence triggered the appeal waiver because it is below the range “corresponding to” an offense level of 33 and a criminal history category of I. See United States v. Clark, 218 F.3d 1092, 1095-96 (9th Cir.2000) (plea agreements are interpreted according to their “plain language”).

Nguyen next contends that the appeal waiver is unenforceable because the district court’s application of the preponderance of the evidence…